Faithful Catholics Need Not Apply

Many MOJ readers will be aware of the Supreme Court's decision--in my judgment, a grotesque decision--earlier this week.  Bear in mind, as you read the following, that every judge in the five-man majority is Catholic--and that no judge in the four-person minority is Catholic.  Giuliani:abortion::majority:cappun.

Monday’s decision, Uttecht v. Brown, reversed a decision of the federal appeals court in San Francisco and injected new flexibility into the standard for excluding jurors.

The appeals court decision, written by Judge Alex Kozinski, whose views are generally conservative, would have granted a new trial to a condemned inmate in Washington State, Cal C. Brown. Judge Kozinski wrote that one potential juror at Mr. Brown’s trial was excluded only because “he did not perhaps show the kind of bloodthirsty eagerness” to impose the death penalty “that the prosecutor may have preferred.”

Justice Anthony M. Kennedy, writing for the majority in the 5-to-4 decision on Monday, said the juror, Richard Deal, “stated six times that he could consider the death penalty or follow the law” but “these responses were interspersed with more equivocal statements.” Given that, Justice Kennedy said, the trial judge was in the best position to make the judgment about whether Mr. Deal should have been excluded.

In dissent, Justice John Paul Stevens wrote that the majority had “gotten it horribly backwards” by creating the impression that “trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot.”

That passage is from a New York Times article that appears this morning.  Here are some more excerpts:

A decision by the Supreme Court on Monday that made it easier for prosecutors to exclude people who express reservations about the death penalty from capital juries will make the panels whiter and more conviction-prone, experts in law and psychology said this week.

“It could give judges the authority to exclude about half the population from service in death penalty cases,” said Samuel R. Gross, a law professor at the University of Michigan. That is because support for the death penalty drops from more than 60 percent to about half when life in prison is the alternative.

“We may have a line of jurisprudence that is at war with itself,” said Eric M. Freedman, a law professor at Hofstra University. “You can’t simultaneously keep expanding the bounds of death qualification and also manifest a special concern for innocence in capital cases. As a brute matter of statistics, the farther you go in death qualification, the more wrongful convictions you will get.”

Jurors eligible to serve in capital cases are “demographically unique,” said Brooke Butler, who teaches psychology at the University of South Florida. Professor Butler has interviewed more than 2,000 potential jurors over the past seven years and has written several articles on the topic. “They tend to be white,” she said. “They tend to be male. They tend to be moderately well-educated — high school or maybe a little college. They tend to be politically conservative — Republican. They tend to be Christian — Catholic or Protestant. They tend to be middle socioeconomic status — maybe $30,000 or $40,000” in annual income. In a study to be published in Behavioral Sciences and the Law, a peer-reviewed journal, Professor Butler made an additional finding. “Death-qualified jurors,” she said, “are more likely to be prejudiced — to be racist, sexist and homophobic.”

A 2001 study in The University of Pennsylvania Journal of Constitutional Law, drawing on interviews with 1,155 capital jurors from 340 trials in 14 states, found that race played an important role in the willingness of jurors to impose death sentences. In cases involving black defendants and white victims, for instance, the presence of five or more white men on the jury made a 40 percentage point difference in the likelihood that a death sentence would be imposed. The presence of a single black male juror had an opposite effect, reducing the likelihood of a death sentence to 43 percent from 72 percent.

To read the whole article, click here.